DIVISION OF YOUTH AND FAMILY SERVICES v. Y.C and J.L.U., IN THE MATTER OF J.U a minor

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3307-10T3

NEW JERSEY DIVISION OF YOUTH

AND FAMILY SERVICES,

Plaintiff-Respondent,

v.

Y.C.,

Defendant-Appellant,

and

J.L.U.,1

Defendant-Respondent.

_______________________________________

IN THE MATTER OF J.U., a minor.

_______________________________________

December 7, 2011

Submitted November 1, 2011 Decided

Before Judges Yannotti, Espinosa and Kennedy.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FN-09-228-10.

Joseph E. Krakora, Public Defender, attorney for appellant (Angelo G. Garubo, Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for respondent Division of Youth and Family Services (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Carla Livingston, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for for minor J.U., (Lisa M. Black, Designated Counsel, on the brief).

Respondent J.L.U. has not filed a brief.

PER CURIAM

Defendant Y.C. appeals from an order entered by the Family Part on January 19, 2011, which terminated this litigation and provided that Y.C.'s biological child, J.U., shall remain in the legal and physical custody of J.L.U., the child's biological father. For the reasons that follow, we affirm.

J.U. was born on October 28, 2009. Two days later, the hospital reported to the Division of Youth and Family Services (Division) that Y.C. was suffering from post-partum depression, had attempted suicide in the seventh month of her pregnancy and reported that J.L.U. had physically abused her while she was pregnant.

The Division's caseworker interviewed Y.C., who admitted that she had a history of untreated depression. Y.C. additionally confirmed that she previously had attempted to commit suicide and that J.L.U. had physically abused her. The caseworker also interviewed M.S. and F.F., the persons with whom Y.C. was residing, and J.L.U.

On November 4, 2009, Y.C. and J.U. were discharged from the hospital. Y.C. and J.L.U. agreed to a care plan that included daily home visits, post-partum counseling for Y.C. and a alcohol and drug evaluation for J.L.U. On November 18, 2009, the Division conducted a home visit during which Y.C. admitted drinking alcohol early in her pregnancy but denied substance abuse problems. The Division required Y.C. to undergo drug, alcohol and psychiatric evaluations.

On November 30, 2009, M.S. reported to the Division that she had refused to allow J.L.U. in her home. According to M.S., Y.C. became very upset and moved with J.U. into J.L.U.'s apartment. M.S. said that she was concerned about their living conditions.

On November 30, 2009, the Division's investigator went to J.L.U.'s apartment. The investigator found that the sole source of heat in the apartment was a space heater in one of the rooms. The Division also found that J.L.U. was sharing the apartment with several men. The Division arranged for Y.C. and J.U. to return to M.S.'s and F.F.'s residence. The Division and Y.C. agreed to a plan that required Y.C. to undergo psychiatric and substance abuse treatment and continue with post-partum counseling.

On December 1, 2009, Dr. Alvaro Gutierrez (Dr. Gutierrez) performed a psychiatric evaluation of Y.C. On that date, J.L.U. also appeared for a substance abuse evaluation but no treatment was recommended. On December 17, 2009, a Division caseworker visited M.S.'s and F.F's residence. Y.C. informed the caseworker that she had stopped taking one of her prescribed medications. Y.C. also said that she had been attending post-partum counseling sessions but expressed reservations about other counseling services.

On December 24, 2009, Y.C. informed the Division that she intended to move with J.U. to J.L.U.'s new apartment. The Division was concerned about Y.C.'s prior allegations of domestic violence and Y.C.'s ability to care for J.U. without assistance from M.S. The Division's representative met with Y.C. and J.L.U. on December 28, 2009, to review these concerns.

At the meeting, the Division also reviewed the results of Dr. Gutierrez's recent psychiatric evaluation. Dr. Gutierrez had determined that Y.C. was not able to protect J.U. from potentially serious harm if she were reunited with J.L.U. Dr. Gutierrez had also determined that there was a "high risk" that Y.C. would abuse or neglect the child due to her "history of depression and suicidal ideations." In his report, Dr. Gutierrez wrote that Y.C. was suffering from a depressive disorder and recommended medication, psychotherapy, parenting skills classes, substance abuse treatment, and participation in domestic violence and anger management groups.

According to the Division, Y.C. did not comprehend or appropriately respond to the Division's concerns. Y.C. told the caseworker that she had informed J.L.U. she would not tolerate any domestic violence but she intended to continue her relationship with J.L.U. because he provided her with financial support. Y.C. denied that J.L.U. had kicked her in the stomach while she was pregnant, contrary to what she told the investigator previously.

In addition, Y.C. told the caseworker the Division "was making too many recommendations and she needed to work to support her other children in Honduras." She stated that she was no longer taking one of her medications because it made her drowsy. She said that the Division's services "were a waste of time."

The Division effected an emergency removal of the child on December 28, 2009. The following day, the Division filed a verified complaint in the Family Part naming Y.C. and J.L.U. as defendants. In the complaint, the Division recounted its involvement with defendants, and alleged that J.U. had been abused and/or neglected. On December 30, 2009, the court issued an order finding, among other things, that the removal of the child was appropriate due to the imminent danger to the child's life, health or safety.

In its order, the court noted that there was evidence of physical abuse between Y.C. and J.L.U., and Y.C. had extensive psychiatric disabilities, which rendered her incapable of protecting the child from herself or others. The court directed defendants to show cause on February 4, 2010 why an order should not be entered continuing the child in the Division's legal and physical custody.

On the return date, the court ordered J.U. to remain in the Division's legal and physical custody. The court further ordered defendants to submit to parenting evaluations, attend anger management and parenting classes, and participate in domestic violence counseling. The court permitted defendants to have supervised visits with J.U. each week and ordered Y.C. to comply with her medication regimen.

On March 4, 2010, Dr. Antonio Burr (Dr. Burr), performed a psychological evaluation of Y.C. In his report of that evaluation, Dr. Burr noted that Y.C. had reported a long history of physical abuse. She admitted having a history of depression and suicidal ideation, and at least two attempts at suicide while living in the United States.

Dr. Burr noted that Y.C. had relied on alcohol to ameliorate her symptoms. Y.C. functioned in the "mild mental retardation range, [and] presented as cognitively disorganized and unfocused." Dr. Burr wrote that Y.C. had difficulty arranging her thinking in a coherent fashion.

Dr. Burr additionally noted that Y.C. had recanted her allegations that J.L.U. physically abused her and used an excessive amount of alcohol. Y.C. said that she fabricated these allegations because she wanted to "sink" J.L.U. with the Division. Dr. Burr wrote that Y.C. admitted she was angry with J.L.U. because he "left her" during her pregnancy.

Dr. Burr concluded that Y.C. had a number of problems with her functioning. He wrote that Y.C.'s mental health status was a concern, as was her failure to comply with treatment, her depressive condition and her "suicidality[.]"

In addition, Dr. Burr wrote, "[t]he fact that [Y.C.] attempted to commit suicide while [seven] months pregnant with the child, and had not given a thought to the likely consequences to the child is a particularly poignant red flag in this case." Dr. Burr opined that Y.C. was not able to parent J.U. at this time "without incurring . . . significant risks of neglect or physical harm [to the child] due to her mental/ emotional condition, and her generalized intellectual and cognitive incapacity."

On March 9, 2010, Dr. Burr conducted a psychological evaluation of J.L.U. In his report concerning that evaluation, Dr. Burr wrote that J.L.U. was of average intelligence. He stated that J.L.U. had credibly denied alcohol or substance abuse, and noted that Y.C. had recanted her allegations of physical abuse against J.L.U.

Dr. Burr concluded that J.L.U. had "presented as a tranquil, calm person who was able to reflect upon his family situation with equanimity[.]" He said that J.L.U. was "capable of developing a parenting plan" and would be competent to parent J.U. with the support of a social network. Dr. Burr found that J.L.U. did not present a risk or threat to the child.

The trial court conducted a fact-finding hearing on April 30, 2010. The court considered the Division's records, along with the reports of Dr. Gutierrez and Dr. Burr, and placed its decision on the record. The court found that, through no fault of her own, Y.C. has mental health issues that she had not treated properly. The court determined that the Division established by a preponderance of evidence that J.U. was neglected, as that term is defined in N.J.S.A. 9:6-8.21(c)(4)(b). The court entered an order dated April 30, 2010, memorializing its decision.

A compliance review was held immediately following the fact-finding hearing. The court thereafter entered another order dated April 30, 2010, continuing J.U. in the Division's custody, care and supervision. The order provided that: (1) Y.C. must attend substance abuse treatment; (2) Y.C. and J.L.U. must attend counseling for domestic violence and anger management; (3) Y.C. and J.L.U were entitled to supervised visits with J.U. each week; (4) Y.C. must take her medication as prescribed; (5) Y.C. and J.L.U. must comply with Dr. Burr's recommendations; and (6) Y.C. must continue to attend a post-partum clinic.

Dr. Gutierrez evaluated Y.C. again on September 21, 2010. This evaluation was limited to assessing Y.C.'s level of depression and suicidal ideations. Dr. Gutierrez found that Y.C. was stable but he reiterated his earlier diagnosis that Y.C. was suffering from a major depressive disorder. Dr. Burr evaluated Y.C. again on September 28, 2010.

In his report, Dr. Burr noted that Y.C. informed him that she had three children in Honduras, not two as previously reported. Dr. Burr's findings were essentially unchanged from his prior evaluation. He wrote:

[Y.C.'s] reasoning, social comprehension, and judgment are all at deficit . . . . Her reality orientation is very poor, and she is quite limited in terms of her mental ability to think strategically, plan, and execute previously designed courses of action.

* * *

[I]t is estimated that [Y.C.'s] chances of parenting successfully are extremely low.

[H]er parental capacities ought to be considered to be rather negligible at this time. . . .

Though she is capable of caring for herself at a basic level, she is not competent to care for a small child on her own. . . . Under her care, [J.U.] is likely to experience neglect and failures of protection which may result in unacceptable risk to the child.

The trial court conducted another compliance review hearing on September 29, 2010. The Division reported that J.L.U. had unsupervised visits with J.U., which were going well. Based on J.L.U.'s psychological evaluation and his compliance with counseling, the court decided to transfer legal and physical custody of the child to J.L.U.

The court entered an order dated September 29, 2010, transferring custody of the child to J.L.U. The order also required Y.C. to continue attending her post-partum program and taking medication as prescribed. The court scheduled the next compliance review hearing for January 19, 2011.

On October 3, 2010, Y.C. was arrested and charged with prostitution, resisting arrest and simple assault. According to the police reports, Y.C. met a man in a local tavern and agreed to have sexual intercourse in exchange for money. Following this encounter, Y.C. fled with the man's wallet. The police were called and attempted to arrest Y.C., who was intoxicated. Y.C. reportedly resisted and physically assaulted several police officers.

On January 7, 2011, the Division's attorney wrote to Y.C.'s counsel and advised that at the January 19, 2011 proceeding, the Division would "recommend that the case be dismissed from litigation with legal and physical custody of the child remaining with [J.L.U.] and [Y.C.'s] visitation [to] remain supervised." In the letter, the Division's counsel stated that it would be relying upon the evidence previously submitted at the fact-finding hearings, Dr. Gutierrez's and Dr. Burr's updated evaluations, as well as a report that would be submitted to the court one week prior to the hearing.

The compliance review hearing was held on January 19, 2011. The Division sought an order dismissing the action and continuing the child in J.L.U.'s custody. The Law Guardian supported the Division's application, although noting some concern with Y.C.'s continued visits with the child. The Law Guardian said that it hoped the Urban League, which had been supervising Y.C.'s visits with J.U., could remain involved until the family made other arrangements.

Y.C. opposed the application. She requested that the case remain open. Her attorney argued that Y.C. was benefiting from medical treatment, Y.C. had been compliant with her medication and she was seeing a psychiatrist every two months. Y.C.'s attorney also argued that if the court were disposed to dismiss the case, Y.C. and J.L.U. should be awarded joint legal custody, with Y.C. having physical custody of the child.

The court placed its decision on the record. The court found that the Division had achieved its objective in the case because the child had been returned to one of its biological parents. The court stated that the Division had made reasonable efforts towards reunification of the child with Y.C., but determined that the child would be at unacceptable risk if returned to Y.C.

The court concluded that the case should be dismissed, with the child remaining in the legal and physical custody of J.L.U. The court continued Y.C.'s supervised visits. The court entered an order dated January 19, 2011, memorializing its decision. This appeal followed.

Y.C. first argues that the trial court erred by finding that Y.C. abused or neglected J.U. by a preponderance of the evidence. We disagree.

"Parents have a constitutionally protected right to maintain a relationship with their children." Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 279 (2007) (citing In re Guardianship of K.H.O., 161 N.J. 337, 346 (1999)). However, this right is not absolute and "must be balanced against 'the State's parens patriae responsibility to protect the welfare of children.'" Div. of Youth & Fam. Servs. v. G.L., 191 N.J. 596, 605 (2007) (quoting M.M., supra, 189 N.J. at 294-95). The Division has been charged with the duty to safeguard the health and welfare of this State's children. Div. of Youth & Fam. Servs. v. G.M., 198 N.J. 382, 397 (2009) (citing N.J.S.A. 30:4C-4).

The Division may temporarily remove the child from an offending parent if the "child's life or health is in imminent danger." Ibid. (citing N.J.S.A. 9:6-8.27(a); N.J.S.A. 9:6-8.29). After the Division files its complaint, the trial court must hold a fact-finding hearing "to determine whether the Division has shown by a preponderance of the evidence that the child was abused or neglected." Id. at 398 (citing N.J.S.A. 9:6-8.44; N.J.S.A. 9:6-8.46(b)).

N.J.S.A. 9:6-8.21(c)(4) defines an "abused or neglected child" as

a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, . . . to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so . . . or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court[.]

Here, the trial court found that J.U. was an abused or neglected child as defined in N.J.S.A. 9:6-8.21(c)(4). The court determined that J.U. was at substantial risk of harm because Y.C. suffered from serious mental health issues prior to and after his birth, and because Y.C. failed to adhere to her medication regimen.

A trial court's factual findings "are binding on appeal when supported by adequate substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412 (1998) (quoting Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974)). The trial court's factual findings in this case are supported by Dr. Gutierrez's and Dr. Burr's reports, the relevant hospital records, as well as the Division's records of its involvement with the family.

Y.C. nevertheless argues that the trial court erred by relying on these documents and should have required testimony from the experts. However, Y.C. acknowledges that at the fact-finding hearing, her attorney did not object to the introduction of the expert reports. Y.C. may not contest the admissibility of evidence when she failed to object to its admission at the hearing. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 332 (2010).

Y.C. also argues that the factual bases for the experts' opinions are questionable. She claims that the treatment records show that she was fully compliant with attendance at parenting, anger management and parenting classes. She contends that the records did not support the experts' findings that she was not compliant with her medication regimen. In our view, these contentions are without merit.

Y.C. does not dispute the experts' findings that she has serious mental health problems. As noted, Dr. Gutierrez found that Y.C. suffers from "depressive disorder." She has a history of depression and suicidal ideations. Dr. Burr also pointed out that Y.C. had a history of depression, including auditory and visual hallucinations. He found, among other things, that Y.C. is "a very unstable person with poor social comprehension, insight or judgment" and she is only able to "function[] marginally."

Furthermore, Y.C. admitted that, at times, she did not take the medication prescribed to address her serious mental health problems. Y.C. now claims that she could not afford the medication. However, Y.C. previously reported to the Division's caseworker that she did not take one of two prescribed medications because it made her "drowsy," not because she could not afford the medication. In addition, Y.C. was told to speak to her doctor about possible alternative medications but there is no evidence indicating that she did so.

Next, Y.C. argues that the trial court erred by failing to conduct a "meaningful" dispositional hearing because she did not have sufficient notice that the January 19, 2011 proceeding would be a dispositional hearing and because the Division failed to present expert or factual testimony at that proceeding. Again, we disagree.

As we have explained, the trial court scheduled the matter for a compliance review on January 19, 2011. Prior thereto, the Division wrote to Y.C.'s counsel and advised that at the January 19, 2011 proceeding it would seek dismissal of the case and an order allowing the child to remain in J.L.U.'s custody. The Division thereafter indicated that it would be relying on the evidence previously submitted at the fact-finding hearing, Dr. Gutierrez's and Dr. Burr's updated evaluations, as well as a report that would be submitted to the court one week prior to the hearing. Y.C.'s counsel did not object to this procedure, nor did counsel seek additional time in which to contest the Division's evidence.

In addition, the trial court did not err by relying upon the documentary evidence presented by the Division. Y.C. fails to explain how she was prejudiced by the fact that Dr. Gutierrez and Dr. Burr did not testify. There is no indication that they would have reached opinions about Y.C.'s inability to care for J.U. that were different from those previously rendered. The trial court properly determined that J.U. would be at substantial risk of abuse or neglect if he were returned to Y.C. and that J.L.U. could safely parent the child.

Affirmed.

1 In the complaint, J.L.U. was erroneously identified as J.A.